Many companies have begun hiring contract workers to do work previously done by regular "lifelong" employees. For Japanese and foreigners alike, working under contract can be intimidating. The uncertainty regarding future employment prospects can be stressful, to say the least. There is a body of law, however, which protects the employment security of so-called temporary workers. It may be useful to have some general idea of contract worker rights.
 

Unlike in the United States and in many other countries, in Japan a job is a constitutionally protected right. The Japanese constitution (Article 27) states that, "All people have the right and the obligation to work.", and further (Article 28), "The right of workers to organize and to bargain and act collectively is guaranteed". The courts have ruled that the right to work can be taken from a worker under a very limited number of circumstances, each of which is well defined. These are⁽¹⁾:

.

• Total incompetence.
• Severe violation of work rules or law.
• A union's demand for violating a union shop agreement.
• Release of employees from temporary or seasonal jobs.
• Reduction in workforce or business necessity
• Change of curriculum (a special provision for faculty at academic institutions only).

 

• Employee performance. The first three reasons listed above, i.e., violation of work rules, incompetence, or reversal of hiring contrary to a union shop agreement are the valid reasons for terminating a regular employee, based on the employee's performance. It is easy to see why a regular employee, i.e. one whose employment arrangements have no fixed time, is considered to be employed for a life-time. The other reasons for dismissal relate to corporate exigencies.

 
• Temporary Workers. Japanese courts have ruled that the temporary nature of a job is defined principally by the job, not the person filling the job. Temporary jobs have been defined⁽²⁾ as:

 
• "Purely temporary workers who are hired because of very transitory needs."
• "Seasonal workers who are hired to meet seasonal business pressures."
• "Ordinary temporary workers hired under short-term labor contracts ... which are extended in the absence of special circumstances, but who, in the event of a business slowdown are laid off ahead of regular employees (and much of whose work is not different from that of regular employees)." For employees under this category who have been repeatedly renewed, " the doctrine of abusive dismissal applies by analogy to refusals to renew short-term labor contracts." The courts have ruled that "the repeatedly renewed labor contract of a temporary factory worker is, 'essentially not different from a contract without a fixed period,' 'the legal regulation concerning dismissals should be applied to it by analogy.'" That is, a repeatedly renewed contract employee of this type is subject to the same protections against abusive dismissals as a regular employee, i.e., only violation of rules, incompetence, union agreements, or employment adjustment are valid reasons for dismissal.⁽³⁾
• "Temporary workers who may be promoted to regular company employees after their hiring for two or three month periods renewed several times and passing a promotion examination."
• "Temporary workers who are hired after mandatory retirement."
• "Temporary workers whose contract renewals are limited (e.g. a six-month period which can continuously be renewed for a total of, but not more than two years)."

 
• Reduction of Workforce. It has been ruled that repeatedly renewed contract workers are in an inferior position to regular employees in the event of "Employment adjustment." Under this ruling, all employees under short-term contract are subject to termination before "regular employees."⁽⁴⁾ However, before any dismissal under an employment adjustment takes place, the following rules must be followed:⁽⁵⁾

 
• The employer must prove there is a need to reduce the number of employees
• The employer must prove that other labor reducing measures, such as early retirements or transfers, have been tried and failed to reduce work force levels sufficiently.
• The employer must set forth clear and reasonable policies for selecting specific persons to be dismissed .
• The employer must explain to the union or the workers the need for an adjustment dismissal, its timing, scale, and method in order to obtain their assent, and must discuss these matters with them in good faith.


More recent rulings have specifically noted a category of contract worker whose contract term is one year. These workers fall between regular employees and short term temporary workers. Employers have the obligation to avoid dismissing these workers who do essentially the same work as regular employees.⁽⁶⁾
 

• Change of Curriculum. As a special consideration for educational institutions, a change in curriculum can justify terminating some faculty at the same time as hiring others. Whether this can be used expressly for "getting rid of undesirable" teachers is being tested presently in the courts.

 

In addition to the limitations on terminations outlined above, even more restrictive rules apply when dealing with members of labor unions. Actions by employers to impede union activities or penalize employees for union participation are also illegal. "Dismissals of workers because they are union members, their having engaged in proper union activities, or similar reasons are invalid as violations of the public policy contained in the guarantee of organizational and other rights in Article 28 of the Constitution."⁽⁷⁾
 

An initial contract offering, a job offer, defines the labor relationship. Subsequent erosion of benefits and conditions don't necessarily void the original relationship. What you are first told may have more weight than what you are subsequently offered.
 

Japanese court cases take a long time to process. Foreigners who don't have a right to remain in Japan, may not be able to effectively assert their employment rights. For those who can fight, often the courts will issue preliminary rulings which force employers to continue salaries and benefits until final resolution. Many cases are settled "out of court" after such preliminary rulings.
 

Japanese courts don't always reach the same conclusions courts would reach in other countries. Often, results strain the imagination of what might seem logical in other circumstances. Sometimes it will seem that a court has bent the rules beyond all possibility to reach a conclusion the judge has already decided on. Invisible relationships do exist between Japanese governmental institutions and corporate institutions and this applies to courts as much as to parliamentary bodies.

1. Most of the information relating to temporary workers is from Japanese Labor Law, by Kazuo Sugeno, translated by Leo Kanowitz, University of Washington Press, 1992

2. Sugeno, 1992, p. 154

3. Sugeno,1992, p. 156 referring to:

Yakigumi, Osaka High Court, January 27, 1960

Aisan Kogyo, Nagoya District Court, February 22, 1963

Toshiba Yanagimachi Kojo, Yokohama District Court, April 24, 1963

Mitsubishi Zosen, Nagasaki District Court, June 12, 1963

Toshiba Yanagimachi Kojo, Supreme Court, First Petty Bench, July 22, 1974

Tokyo High Court September 30, 1970, 606 Judgements 3

4. Sugeno, 1992, p. 156  referring to

Hitachi Medeiko, Supreme Court, First Petty Bench, December 4, 1986

5. a representative case includes

Fuyo Business Service, Nagano District Court, Matsumoto Branch, March 29, 1996

6. Sanyo Denki Electric Appliances, Osaka District Court, October 22, 1991

(translated from Kazuo Sugeno Japanese Labor Law of a later date, publication date unknown)

7. Sugeno, 1992, p. 401 referring to

Trade Union Law, Articles 7 and 27